R v Bani

[2016] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bani [2016] QCA 167

PARTIES:

R
v
BANI, Cameron Joseph
(appellant)

FILE NO/S:

CA No 296 of 2014
SC No 28 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 17 October 2014

DELIVERED ON:

21 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2016

JUDGES:

Philippides JA and Boddice and Burns JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO ALL THE EVIDENCE – where the appellant was convicted of murdering the deceased – where the deceased’s mother gave evidence of an altercation between the appellant and the deceased in which the appellant inflicted multiple blows with his fists to the deceased – where the appellant’s account to police supported that version of events – where there were inconsistencies between the evidence given by the deceased’s mother at trial and at the committal hearing – where the deceased’s mother gave evidence that the appellant had struck the deceased on a number of occasions with a metal pot – where that evidence was supported by independent evidence, including physical evidence found on the pot and the forensic pathologist’s examination of the deceased’s injuries – where the prosecution established no motive as to why the appellant would want to kill the deceased – where there was evidence the appellant was angry with the deceased before and during the altercation – where the appellant took steps to attempt to revive the deceased after the sustained altercation, and called an ambulance – where the appellant argued the evidence was insufficient to satisfy the jury beyond reasonable doubt that at the time the appellant caused the deceased’s death he intended to cause death or grievous bodily harm – whether the verdict is unreasonable or insupportable having regard to all the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

N V Weston for the appellant (pro bono)
J A Wooldridge for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. PHILIPPIDES JA:  I agree with Boddice J.

2. BODDICE J:  On 17 October 2014, a jury found the appellant guilty of the murder of Deon Edward Davis.  The trial judge convicted the appellant of the offence of murder and sentenced him to life imprisonment.

3. The appellant appeals his conviction.  The sole ground of appeal is that the verdict is unreasonable and cannot be supported by the evidence.  At issue is whether the finding of the jury that the appellant held the requisite intention to kill or cause grievous bodily harm, necessary to establish the offence of murder, was supported by the evidence.

   Background

4. The deceased died on 5 May 2012, as a result of injuries he had sustained in an altercation with the appellant at the appellant’s residence, shared with the deceased’s mother, Susan Davis.  Those injuries were inflicted on the evening of 4 May 2012.

5. The appellant and the deceased, who were of a similar age and size, had been involved in an earlier altercation on the morning of 4 May 2012.  The deceased’s mother had intervened and separated the two men on that occasion.  After that incident the two men shook hands, hugged and said sorry to each other.  Late on the afternoon of 4 May 2012 and into the evening, relations between the two men deteriorated once again.

   Evidence

6. On 4 May 2012, Ms Davis was living with the appellant and her children.  The appellant had been living with Ms Davis for approximately 12 months.  Ms Davis had known the appellant since he became friends with the deceased.  The deceased, who had been living in recent times with his partner and their baby, had returned to live at the residence some weeks earlier.

7. In the early hours of the morning of 4 May 2012, Ms Davis was awoken by screaming from the deceased’s partner.  Both the appellant and Ms Davis ran outside into the deceased’s bedroom.  The deceased’s partner said the deceased had struck her.  There was a struggle between the appellant and the deceased.  Each had the other in a headlock.  There was screaming and yelling.  Ms Davis, who described the deceased as taller and lankier than the appellant who was a bit shorter and stockier, stepped in to stop them fighting with each other.  She was able to separate them and things calmed down.

8. Ms Davis said the appellant wanted the deceased and his partner to leave the house.  She said they were to stay.  Ms Davis and the appellant went for a walk.  The appellant told her not to get in the way again because he would hit her and he would not care.  The appellant said the deceased had called him a dog and that no-one calls him a dog.[1]

   [1]AB38/30.

9. The deceased, his partner and their baby left the house later that morning to attend an appointment.  Prior to leaving, the deceased and the appellant had a handshake and a brief hug.  They said sorry to each other.  The deceased, his partner and baby returned to the house later that day.  In the afternoon, the deceased helped his partner and her baby return back to their hostel.  The appellant and Ms Davis attended with the deceased, his partner and baby at a bus stop that afternoon.  Ms Davis and the appellant then travelled to a shopping centre.  They had lunch before returning home at about 3.00 pm.

10. Ms Davis said at sometime after 5 o’clock that afternoon the deceased returned to the home.  The deceased was drinking alcohol with his brother-in-law Greg under the carport.  Ms Davis asked her other son, Marley, to go outside to tell them to leave.  Ms Davis had a headache and did not want them drinking any more.  After they left Ms Davis commenced making dinner.  She had roasted a chicken.  She also cooked vegetables in a large steel pot.

11. Ms Davis and the appellant left the house for a period with Ms Davis’ other children.  They travelled to a bottle shop before returning home by taxi.  Whilst at the bottle shop the appellant purchased a six pack of beer.

12. Ms Davis said when they returned home, the deceased was sleeping on the couch.  The appellant slammed the front door.  She asked him not to slam the door because the deceased was sleeping but the appellant replied “he is not sleeping”.[2]  The appellant told her to throw out the vegetables in the pot as the deceased “might’ve done something to them”.[3]  Ms Davis threw them in the front yard.  The appellant thought the deceased had spat in the pot.  The appellant also commented that he wanted the other children home and that they weren’t home because of the deceased.

    [2]AB46/36.

    [3]AB46/25.

13. Ms Davis said the appellant went outside and had a drink under the carport with some friends.  Later, the deceased awoke.  He had wet himself and he went into the bedroom to change his clothes.  The appellant was sitting at the kitchen table using a new mobile phone he had purchased that day.

14. Ms Davis said after the deceased changed his clothes, she saw the deceased and the appellant standing in the hallway.  Things were becoming a bit heated and Ms Davis said it was very uncomfortable.  They were staring at each other.  Later the three of them went into the dining room and sat at the table.  Ms Davis left the table to wash up.  The deceased and the appellant moved into the lounge room.  They were playing loud music.  The commenced to argue.  The deceased sounded like he was upset.  The deceased said something about how would the appellant like it if the deceased dated his mother.  Ms Davis turned and noticed they were both standing fairly close to each other.  They were standing like they were ready to fight.  Ms Davis said the deceased did not appear overly intoxicated.  He did not have any trouble talking or moving about the house.  The appellant also did not appear to be affected by alcohol.

15. Ms Davis said she quickly ran out the back door and telephoned triple zero.  Whilst she was on the telephone she heard a big bang inside.  It sounded like it was in the kitchen.  The appellant came outside.  As he did so, Ms Davis put her mobile phone in her pocket so the appellant would not know she had telephoned triple zero.  The appellant told her to get back inside to see what he had done to her son.[4]  The appellant appeared very angry.

    [4]AB54/30.

16. Ms Davis went back into the house and saw the deceased lying on the floor in the hallway area.  His head was facing towards the lounge.  He had blood on his face.  The deceased was not awake and was not saying anything.  She noted the appellant had blood on his shorts.

17. Ms Davis said that when she returned to the house the appellant told the deceased that if he did not answer him he was going to “get it”.[5]  The appellant shoved Ms Davis over on the lounge and told her to sit there and shut up.  The appellant said she was to watch what else he was going to do to her son.  The appellant rolled the deceased onto his back and threw a punch in his chest.  The appellant then stood over the deceased with his legs over the top of him and threw punches in the deceased’s face.  The appellant said to the deceased “you think you’re tough now”.[6]  The punches being thrown were “full going forces”.[7]  The deceased did not react to the blows.

    [5]AB56/35.

    [6]AB59/5.

    [7]AB59/15.

18. Ms Davis was on the edge of the lounge trying to get up to tell the appellant to stop it.  The appellant told her to shut up and to not get in the way.  The appellant grabbed a steel pot from the kitchen.  By this stage the deceased was lying on his stomach with his head turned to the side.  The appellant started smashing the back of the deceased’s head with the pot.  The appellant had turned the pot over and tipped its contents on the deceased before he struck the deceased on the back of the head.

19. Ms Davis fell to the ground and began vomiting.  The appellant told her to get away from the window.  The appellant said to the deceased “look at what you’ve done to my shorts, they’ve got blood all over them”.[8]  The appellant stripped his shorts off and put the deceased over the stool and stripped him.  The appellant slapped the deceased in the face with his thongs.  The deceased’s head was hanging down towards the floor.  There were blood clots coming out of it.  Ms Davis grabbed a sheet or a towel from the hallway cupboard.  She also grabbed the kitchen pot that was lying on the floor and hid it between the chair and the lounge.  She said she was scared for her life.

    [8]AB61/9.

20. Ms Davis said the appellant picked the deceased up and took him to the bathroom.  The appellant placed the deceased on the bathroom floor and tried to resuscitate him.  The appellant told her to go and retrieve a stethoscope the deceased had taken from the hospital.  The appellant dragged the deceased into the bath tub and put the shower on him.  The appellant then rang the ambulance.  Ms Davis went into the laundry and got a mop and bucket.  She started to clean up the deceased’s blood.  Shortly after, the police and ambulance arrived.

21. When police arrived, Ms Davis went outside and said “he’s killed my son, he’s killed my son”.[9]  The police would not allow her back in the house.  Ms Davis said that sometime during that evening the appellant ripped the telephone out of the wall in the kitchen.

    [9]AB64/2.

22. Ms Davis accepted that in her initial statement to police she said the appellant had purchased a six pack of Tooheys Extra Dry stubbies and had sculled a number of those beers whilst in the carport after they returned from the shops.  The deceased had also been consuming alcohol that day.  Ms Davis agreed the appellant at that time was in the habit of smoking cannabis on most days.  She accepted it was possible the appellant smoked cannabis that day.

23. In evidence, Ms Davis denied that when the appellant came outside while she was telephoning the police he asked her to come inside to help the deceased.  She also denied there was no more punching of the deceased when she returned inside.  Ms Davis agreed that at the committal she had given evidence that she could not remember if the pot hit the deceased in the face or where it actually hit his head.  She also could not remember how many times the appellant hit the deceased with the pot.  However, Ms Davis was sure the appellant used the pot and his fists on the deceased.

24. Ms Davis agreed there was blood everywhere in the kitchen, dining and living areas and that the appellant was slipping in the blood when he attempted to take the deceased down to the bathroom.  She agreed the appellant dropped the deceased on a number of occasions when he was trying pick him up to take him to the bathroom because of the amount of blood on the ground.  She agreed the appellant tried to resuscitate the deceased and had placed the deceased in the bath and turned on the water.  She agreed she attempted to clean up the blood.  The appellant did not try to clean up anything.  He was tending to the deceased.

25. Shauna Lee-Rose Fewquandie, the deceased’s sister, was staying at Ms Davis’ residence on 4 May 2012.  The deceased, who had moved out to live with his partner but returned to the residence some months before 4 May 2012, was sleeping mainly in the lounge room.  On the night of 3 May 2012, the deceased slept in one of the bedrooms with his partner and their child.  They had been staying in the residence for about a week.

26. Ms Fewquandie was awoken around 4 o’clock in the morning of 4 May 2012 by the deceased and his partner arguing in angry voices.  The appellant went into the deceased’s bedroom.  Ms Davis followed the appellant.  Ms Fewquandie observed the appellant rugby tackle the deceased into a corner of the bedroom.  Ms Davis was yelling to the appellant to get off the deceased and tried to pull them apart.  The deceased and the appellant then went outside and things settled down.  She later saw them shake hands.  Ms Fewquandie left the residence later that morning to attend an appointment at the hospital.  She returned at around 2 or 3 o’clock that afternoon.  When she arrived home the deceased, the appellant and her mother were present in the house.  The deceased was drunk.  She could tell he was affected by alcohol when she spoke to him.  His words were a bit slurred.

27. Ms Fewquandie decided to leave later that afternoon as the appellant wanted to go get some alcohol.  She could not recall seeing either the appellant or the deceased drinking while she was at home.  She agreed that when she provided her statement to police she said that she recalled seeing the appellant starting to drink when she arrived home from the hospital appointment that afternoon.

28. Ms Fewquandie left the residence in a taxi with Ms Davis and the appellant.  The deceased remained at the residence.  The appellant went into a liquor store.  Ms Fewquandie said when they were walking down the street she heard the appellant say he was going to teach the deceased a lesson.  He said it in a serious voice.  This occurred before they took the taxi to the liquor store.

29. Ms Fewquandie recalled that in the afternoon before she left the residence she saw the appellant and the deceased in the lounge area.  They were face to face.  It appeared like they were having serious words to each other.  She could not hear what was being said by either of them.  It looked like they were going to fight.  That was why she wanted to leave.  It looked like they were both angry with each other.

30. Marley Fewquandie, the deceased’s brother, was also living at Ms Davis’ residence on 4 May 2012.  The deceased had been staying at the residence for a few days prior to that date.  He normally lived with his partner and daughter in Woodridge.  Mr Fewquandie also recalled being awoken in the early hours of 4 May 2012 by a disturbance in the house.  The deceased and his partner were yelling, arguing with each other.  The appellant and Ms Davis were in the deceased’s bedroom.  He saw the deceased and the appellant arguing in the bedroom.  The appellant was saying to the deceased that he was “sick of this shit”.[10]  The appellant and the deceased then started to get physical, pushing each other.  The appellant grabbed the deceased and chucked him onto the ground.  Ms Davis broke it up and took the appellant out of the room.  Things then calmed down.

    [10]AB112/24.

31. Mr Fewquandie left the residence later that morning and returned in the afternoon.  The deceased was outside with some friends having a couple of beers.  Mr Fewquandie went inside and told his mother they were drinking outside.  Ms Davis told him to tell them there had been enough drinking.  He went outside to tell them they had to leave.  He did not have any trouble talking to the people outside, or understanding them.

32. Mr Fewquandie helped Ms Davis prepare dinner by peeling potatoes and putting them into a silver pot with two handles.  He then played Xbox games with a friend.  The deceased was sitting in the lounge whilst they played that game.  The deceased was obviously affected by alcohol but was not drunk.  Ms Davis then decided he should leave and stay with his aunt that evening.  She said the deceased and the appellant were going to have some drinks.  He then left the house with his sister, Ms Davis and the appellant.  The deceased remained in the residence.  They caught a taxi to the local liquor store.  Whilst in the taxi the appellant did not seem to be affected by alcohol or cannabis.  He did not see the appellant consume any cannabis or have anything to drink that afternoon or in the early evening.

33. Mr Fewquandie agreed that whilst in the taxi the appellant was talking about teaching the deceased a lesson, about “putting him in hospital”.  Ms Davis told him there was no need for that.[11]  The appellant was upset with something that had happened between the appellant and the deceased just before they left the residence.  He agreed that at committal he had said that in the argument in the morning between the deceased and his partner, the deceased’s partner complained the deceased had hit her.  He also said it was at that point the appellant intervened and there was a fight of some description with the deceased.

    [11]AB120/25.

34. Mr Fewquandie said around 5 or 6 o’clock on the afternoon of 4 May 2012, he spoke to the appellant by telephone.  The appellant wanted him to return to the house.  The appellant sounded agitated and angry.  He could not tell whether the appellant had been drinking at that stage but agreed it sounded like he had been drinking.  The appellant “just sounded different”.[12]

    [12]AB118/25.

35. He could not recall seeing the appellant drinking at the residence with one of his friends.  He agreed his mother said she did not want him to stay the night because the boys were planning on having drinks.

36. Kelly-Anne Humphries, a police officer, attended Ms Davis’s residence on the night of 4 May 2012 following a radio message at about 10.00 pm.  She arrived shortly before 10.15 pm.  Ms Davis was standing in the vicinity of an open gate.  She had a glass in her hand.  She heard Ms Davis say quite clearly, “My son is dead”.  Ms Davis then threw the liquid in the glass that was in her hand turned, screamed and ran inside.  She followed Ms Davis through the front door into the living area.  She noticed a watered down red substance on the floor.  It was like watered down blood that was “pretty much everywhere”.[13]  As she ran up the hallway she could see a rolled up blanket, which had what she thought was blood all over it, bundled up into a corner of the hallway across from the bathroom.  She could hear Ms Davis in the kitchen area.  She was crying and very upset.

    [13]AB125/5.

1. Ms Humphries said as she entered the bathroom she observed the deceased lying on the floor.  He was naked with his head towards the doorway.  The appellant was bending down over the top of the deceased, with his hands on his knees.  He was standing towards the deceased’s feet.  He had one foot on either side of the deceased’s body.  Ms Humphries asked the appellant had he done any CPR on the deceased.  The appellant said something about trying to get a response.  Ms Humphries leant down and put two fingers under the deceased’s chin but could not feel a pulse.  She could not see his chest rise or see any breathing.  She went out of the residence to obtain a face mask.  Other officers then commenced CPR on the deceased.

2. Ms Humphries described the deceased as very ashen in colour.  His face was contorted or malformed, and was very swollen around the eyes.  He had a cut on one eye and blood in his nose.  There was water around his chest and face.  There were quite a lot of injuries in his face region.  There was a sheet or blanket with blood on it under the deceased’s body.

3. Ms Humphries said another officer ordered the appellant out of the bathroom.  Ms Humphries said she observed what appeared to be a blood splatter across the fridge and in the counter area of the kitchen.  She then moved and went with the appellant into the living area.  She noticed he had blood on him.  He was wearing shorts but was not wearing shoes or a shirt.  She spoke to the appellant for some time.  He appeared to be very clearly spoken.  He did not appear to have any issues with respect to motor skills or his ability to move around.  He appeared to understand what she was doing very clearly.  The appellant said they had had a fight.  The appellant said he had hit the deceased with his elbows and his fists.  The deceased kept going down and coming back up again, so he kept hitting the deceased.

4. Ms Humphries said when she took the appellant outside in the street she observed he had old blood on his chest and face.  She had a further discussion with the appellant outside.  That discussion occurred prior to 10.30 pm on the footpath outside the house.  During that discussion the appellant said the deceased had taken a swing at him.  This happened as soon as the deceased woke up.  The appellant had a fight with the deceased.  It started in the lounge-room and moved to the kitchen.  The deceased was upset with the appellant because he was in a relationship with the deceased’s mother.  The fight started earlier and the deceased then went to sleep.

5. The appellant said when the deceased woke up it started again and the deceased took a swing at the appellant.  The deceased got up and said, “Every time I look at you I want to break your jaw.”  The appellant said, “Well if it’s on then it’s on.”  The deceased then came at him.  The deceased came at him and the appellant “cracked him about three times”.  The deceased hit the deck, got back up, so the appellant cracked him and he went back down.  The deceased got back up and the appellant went “bang, bang, bang, bang, bang, bang”.  The deceased went down.  The appellant said he saw the deceased was choking and he rolled the deceased on his side.  He left him for a little while, maybe two or three minutes.  The appellant then picked him up and put him in the shower.  That was a good 10 minutes before the arrival of police.  The appellant tried CPR and tried to find a stethoscope.  He then called an ambulance.

6. The appellant said during the argument the deceased had said that he wanted to stab the appellant and had commenced walking towards the kitchen.  At that point the appellant said, “It’s on”.  The appellant hit the deceased three, four times.  He went down and got back up.  The appellant hit him again with a couple of elbows.  The deceased went down and got back up.  That was when the appellant “just pretty much unleashed”.  When the appellant did not get up after he unleashed, the appellant said he started to panic.  He rolled the deceased over.  He went to the sink and grabbed a pot of water and flipped it on its side to pour water over him.  He then picked the deceased up and put him on a chair.  He put his fingers down his throat to see if he would throw up.  He picked the deceased up and took him into the bathroom.  He asked Ms Davis to obtain a stethoscope.  The deceased was not breathing and he could not find any pulse so he commenced CPR.

7. Ms Humphries agreed the appellant was very cooperative and compliant.  He gave his version despite a warning that he did not have to answer their questions.  She agreed the appellant was concerned about the deceased’s condition.

8. Kevin Murphy, an intensive care paramedic, arrived at Ms Davis’s house at 10.17 pm after receiving a call at 10.09 on the evening of 4 May 2012.  He observed police officers performing resuscitation on the deceased.  The ambulance officers moved the deceased very quickly into the lounge area so that they could adequately perform resuscitation and to avoid blood contamination in the area.  Mr Murphy said there was lots of blood around the top of the deceased’s head and nose and surface blood on the floor and walls.  The deceased did not have a pulse and appeared to have a head injury.  Ambulance officers regained a rhythm at 10.30, some 12 minutes after their arrival.  The deceased was transported to the Logan Hospital.  He lost pulse again whilst in transit.  Ambulance officers were able to regain his pulse by use of drugs and cardiac compressions but the deceased never regained respiration.

9. Dr Lawrence McGuire, an emergency medicine specialist, attended on the deceased when he arrived at the Logan Hospital at 10.46 on the evening of 4 May 2012.  He noted that the deceased had a single laceration to his forehead, that the deceased was not breathing spontaneously and that he had broken upper front teeth.  The deceased had extremely low blood pressure and was not responsive to external stimuli.  A more extensive examination revealed a laceration to the back of the deceased’s head.  It was approximately six centimetres deep.  A CT scan revealed widespread swelling to the tissue of his brain.  An opinion was formed that the deceased had irreversible brain injury.  A decision was made to withdraw life support.  The deceased died shortly after withdrawal of life support on the morning of 5 May 2012.  The deceased did not regain consciousness at any stage.

10. Dr Sally Jacobs, a forensic medical officer, conducted an examination of the appellant at the Logan Police Station on 5 May 2012 from approximately 4.30 pm.  The appellant was alert, orientated and cooperative.  He did not appear to be intoxicated by either alcohol or cannabis.  Dr Jacobs noticed what appeared to be blood on the appellant’s ears and the right side of his face.  There was also what appeared to be blood on the right side of his chest.  The appellant had a number of scabbed abrasions to the arms and hands, which would not have been a recent injury.  The appellant’s left hand had swelling and redness over the knuckles.  One knuckle was extremely tender.  By the end of the examination the back of the left hand had developed a red/blue bruise, with swelling associated with that bruise.  She also observed a one centimetre long linear red mark on the back of his right hand.  There was blood on the fingers around the fingernails of the left hand and some of the fingers on the right hand.  Dr Jacobs observed what appeared to be blood around the foot and an abrasion on the side of his left ankle.

11. Dr Jacobs said a breath analysis undertaken at approximately 2.00 on the morning of 5 May 2012 had produced a reading of 0.038.  Allowing for elimination rates, and the fact that the appellant had not consumed alcohol since he had been in police custody from approximately 10.15 the previous evening, Dr Jacobs estimated his blood alcohol reading at or about 10.15 the previous evening was between 0.074 and 0.162.  Dr Jacobs said a blood sample taken from the appellant at about 5.35 on the afternoon of 5 May 2012 detected that no alcohol in the appellant’s blood.  That conclusion was consistent with the reading obtained at 2 o’clock in the morning of 5 May 2012, having regard to the usual elimination rates.  Urine analysis detected blood but no drugs.  The fact that cannabis was not detected in the blood or urine did not, however, indicate whether cannabis had been consumed within the last 24 hours.

12. Dr Jacobs agreed it is difficult to be accurate about the amount of alcohol in a person’s body at a particular time as it depends upon the individual’s metabolism and other circumstances which may affect the absorption rate.  However, if the appellant’s genuine blood alcohol concentration at 2.00 am on 5 May 2012 was 0.038, his blood alcohol reading at approximately 10.00 pm on 4 May 2012 would have been 0.118.[14]  That level would affect a person’s brain and central nervous system.  It may act as a disinhibitor, so that you could expect things such as apparent bravado and a loss of restraint.[15]  It can also cause deficits in reasoning ability.  Dr Jacobs also agreed that if a person is unconscious when they fall they are unable to protect themselves from sustaining serious injury.

    [14]AB157/40.

    [15]AB158/33.

13. Dr Jacobs arranged for the appellant’s left hand to be x‑rayed because she was concerned it may have had a fracture.  A subsequent examination of both hands revealed a fracture through the middle part of his left metacarpal, the bone extending from the knuckle towards the wrist.  There were no other fractures to the left hand and no fractures to the right hand.  Such an injury could be consistent with the application of force by a fist, although other mechanisms may cause such an injury.

14. Dr Rohan Samarasinghe, a specialist forensic pathologist, undertook an autopsy of the deceased on 7 May 2012.  He recorded that the deceased was 178 centimetres tall and weighed 70.6 kilograms.  He had an average body mass index.  Examination revealed the deceased had a laceration on the front of his forehead near his eye.  There was bruising around the eyes and inside the lips.  There were also broken teeth.  The deceased had a fractured mandible on the left and a nasal bone fracture.  There was a large laceration on the back of his head, with a small area of bruising on the back of the left side of the head in general.

15. In Dr Samarasinghe’s opinion, the fracture to the nasal bone is likely to have occurred as a result of a blunt force impact to the nose of moderate to severe force.  Such an injury could occur by a person falling and hitting a surface, but as the fracture was to the top of the nose, it was more likely the result of blunt force being applied to the nose.  The fracture to the left side of the jaw was also likely to have been caused by blunt force, of a moderate to severe type.  It is very unlikely to have been caused by a fall.  The force required to break this bone is towards severe.  Even if the person was unconscious when they dropped from a height, it is very unlikely the fracture to the left jaw would be caused by that fall.

16. Dr Samarasinghe said the haemorrhaging around the deceased’s eyes was most likely to have been caused by the direct application of a blunt force over the eyes.  This was particularly so, having regard to evidence of direct contact with an object or a surface around the right eye, there being a single laceration over that eye.  A moderate degree of force would have been required to cause that level of bruising to the eyes.  The deceased also had bruising to the left ear, which is likely to have been as a result of the application of blunt force to that area.  All of the bruising and haemorrhaging had been sustained less than 48 hours ago.  All of the injuries were consistent with each other in terms of their age.

17. Dr Samarasinghe said bruising to the lips and mouth area were also consistent with blunt force trauma to that area, as was the damage to the deceased’s teeth.  It is likely moderate to severe force would be required to break multiple teeth.  The bruising to the mouth and the broken teeth could have been due to a single application of force or more than one application of force.  The laceration on the forehead is likely to have been caused by the application of blunt force of at least a moderate degree.  There was an abrasion to the right cheek which was consistent with the application of blunt force.  This injury appeared to be as fresh as the other injuries.  The nature of these injuries was consistent with either one or several blows to the deceased’s face.

18. Dr Samarasinghe said some of the abrasions to the forehead could have been caused by either blows or a fall.  The deceased did have a stipple abrasion, which would be consistent with contact with a rough surface, such a concrete floor.  Dr Samarasinghe said abrasions to the elbow could be consistent with defensive injuries if they were taken in isolation but, as a whole, it did not mean they were defensive injuries in this case.  Abrasions to the deceased’s knee would be consistent with a fall on the knees.  Some of the injuries to the chest area could have been occasioned by treatment given by paramedics.

19. Dr Samarasinghe said the laceration to the back of the deceased’s head was quite long and was of an irregular shape.  It was likely the deceased’s head had been in contact with an object at least five times.  Having regard to the degree of thickness, it is likely a severe force was applied to inflict this injury.  The type of item necessary to have had contact with the head would be a reasonably heavy object, with a striking surface that was not sharp.  Whilst the injury could be sustained by a backward fall, his experience was that people who fall backwards do not suffer this pattern of injuries.

20. Dr Samarasinghe said an examination of the deceased’s head and brain revealed an area of subdural haemorrhage on both sides.  Such an injury was most likely caused by a blunt impact to the head.  Such an injury can also cause the brain to move, directly damaging the brain.  The deceased had such damage to his brain.  There was also evidence of damage to the spine being occasioned by a blow or blows in that area.  There was evidence of haemorrhage around the muscles of the neck, consistent with a direct or indirect application of blunt force to the neck.  A laceration to the front of the neck was definitely the result of blunt trauma being applied to that area directly or indirectly.  Areas of haemorrhage to the abdomen were also consistent with blunt force, like kicking, punching or similar activities, of at least a moderate degree.  There was no evidence of falling causing these injuries.  It was not unusual that there was an absence of external injuries to the abdomen area.

21. In Dr Samarasinghe’s opinion, the injuries sustained by the deceased were consistent with the deceased being struck a number of times to the head, which led to underlying brain injury and death.  Dr Samarasinghe was shown the metal pot alleged to have been used by the appellant to strike the head of the deceased.  He observed the pot had a reasonable weight and prominent edges around the upper lower lips, as well as the handle area which was broken.  The injuries sustained by the deceased to the back of his head were consistent with having been caused by a similar object.  The bleeding to the brain observed on post-mortem was also consistent with a direct injury to the brain, most likely due to force to the back of the head.  The existence of nerve damage to the brain was consistent with that application of force causing unconsciousness in the deceased.  The injuries to the brain resulted in irreversible brain damage.

22. Dr Samarasinghe said a blood sample taken from the deceased at 10.55 on the evening of 4 May 2012 revealed a blood alcohol reading of 0.207.  The presence of such a high concentration of alcohol would depress the brain functions and affect motor skills.  It is possible treatment from paramedics had diluted the level to a degree.  Dr Samarasinghe noted the deceased had a urine alcohol level of 0.22.  The difference was not great but implies the deceased was either in the peak of his absorption or there was a declining rate of alcohol in his blood.  The level of alcohol did not contribute directly to the deceased’s death.

23. Dr Samarasinghe agreed the deceased had over 39 injuries to his body, of which 26 were abrasions.  Abrasions could have been caused from contact between two people who were wrestling or fighting, or by contact with the floor or some other surface.  Bruising simply suggested the application of force to that part of the person’s body.  It did not allow him to say exactly what had happened to cause a particular bruise.  However, the fractures to the teeth and facial bones could not be due to a fall.  The facial injuries were consistent with the direct application of force.  A fall was not going to cause the fractures to the mandible or the teeth.  Dr Samarasinghe agreed his report had referred to the injuries to the face, with fractured teeth and bones, being consistent with falls and/or heavy blows, such as from fists or elbows or similar, but said that, whilst some of the injuries were consistent with falls, some of the injuries were less likely to be consistent with a fall.  In his opinion, it was impossible for the fracture of the mandible to have been caused by a fall.  He agreed that he could not say how many blows the deceased may have received before he was unconscious and whether he received any blows after he was unconscious.

24. Dr Samarasinghe said the complex nature of the laceration to the back of the head, which contained overlapping, was consistent with a minimum of five impacts, although the pattern of injuries could be consistent with less than that.[16]  He could not say the metal pot actually caused the laceration to the back of the head, but did not accept that any object could have caused the nature of that laceration.  It depended on the shape of the object as a striking surface and its weight and velocity.  A flat object normally did not cause a laceration with that pattern.  A pot was consistent with the pattern, having regard to its relatively prominent edges.

    [16]AB202/30.

25. Dr Samarasinghe accepted a laceration to the back of the head can be caused if someone falls over, but here there were a number of transverse lacerations aggregated in one area, but not in exactly the same position.  A person falling backwards and hitting the floor with their head is not going to produce this pattern of injury.  Dr Samarasinghe accepted that if a person was punching someone in the head a number of times, forcing the head backwards to contact the floor with a hard surface on a number of occasions, that could cause a series of lacerations to the back of the head.  He accepted there were no skull fractures.

26. Brad Bardell undertook a forensic examination of Ms Davis’ home shortly after midnight on 5 May 2012.  He identified areas of bloodstaining in the front entrance, lounge area, dining area, kitchen, hallway and each of the bedrooms.  Later that day he took a number of swab samples from the appellant.  He also examined the appellant’s yellow shorts.  A presumptive test for blood to an area of red staining across the front of the legs of the shorts was positive.

27. Mr Bardell returned to Ms Davis’ residence at about 9.30 on the morning of 5 May 2012.  He observed some empty beer bottles in the rubbish bins near the carport.  He also saw the remnants of some chopped vegetables in the front garden.  He observed blood deposited on a number of surfaces, including the lounge walls and ceiling.  He saw what appeared to be indications of mop marks on the floor areas of the dining and lounge areas.  An examination of the lounge area revealed blood staining in various areas and on various items.  The blood stains were a combination of contact, transfer, projected or passive stains.  What he particularly noticed was the distribution, frequency and location of the blood stains at a lower level.

1. Mr Bardell observed blood staining on walls in the lounge area.  The majority of those blood stains had the appearance of travelling downwards but one of the blood stains on the wall had an upward directionality suggesting an application of force.  The existence of larger blood stains in certain areas was consistent with the blood being exposed to force.  An examination of the floor revealed there were altered stains suggesting some disturbance of the blood stains within that area.  He found white marks and a blood stained mop.  His examination also suggested the lounge chair had been moved from its original location.

2. Mr Bardell observed blood staining on the dining room table, bench seat and floor immediately surrounding those items.  There were indications of disturbance of blood in that area, presumably from a wipe or a swipe.  There were also blood stains in the kitchen area and hall area.  Some of the blood stains in the hall area were consistent with an upward direction.  Blood located on items in the kitchen was also consistent with it being projected back in that direction.  There was also projected blood on the ceiling in those areas.

3. Mr Bardell located a metal kitchen pot in between two chairs in the lounge area.  It contained a small volume of water as it was resting on its edge.  The contents looked like diluted blood.  In the area of the hallway Mr Bardell located a blood stained mop, three blue/green thongs, one black and white thong, a white and blue towel which was blood stained and black plastic bakelite type fragments.  Those fragments had the same consistency as the handle of the metal pot he had located in the lounge area.  That pot had one handle that was loose and one handle that was broken.

4. In Mr Bardell’s opinion the size, shape, location, orientation and distribution of blood staining in and around the hall area and towards the dining room, whilst disturbed, were consistent with a distribution from a source of blood in close proximity to the floor being exposed to an application of force.[17]  Mr Bardell also found a deal of blood in the bathroom.  There was also some blood stained hair in that area.  Most of the blood staining was consistent with contact transfer blood stains.

   [17]AB230/45.

5. Mr Bardell undertook an examination of the metal pot and the black plastic fragments.  He located a number of dark coloured hairs in the black plastic fragments.  There was also tissue and flesh like material on the broken edges of a large fragment.  These items reacted consistently with a control human blood swab.

6. Jacqueline Wilson, a forensic scientist, undertook DNA analysis of certain biological samples submitted to her by the Queensland Police Service.  These samples included four swabs said to have been taken from a metal pot and one sample said to be a piece of flesh from a piece of plastic.  Her examination revealed DNA consistent with that of the deceased, with the probability it had come from somebody other than the deceased being approximately 1 in 120,000 billion.

7. Ms Wilson also undertook an examination of some fingerprint scrapings taken from the appellant’s hands.  After allowing for the appellant’s DNA, this sampling revealed remaining contributions which were consistent with the DNA profile of the deceased.  Swabs taken from the appellant’s fingers were also consistent with the DNA profile of the deceased, as were swabs taken from a wall area.  Ms Wilson agreed her results did not tell her whether the DNA came from blood, saliva or other bodily fluids.  Her testing also did not allow her to determine categorically whether the sample described as a piece of flesh was in fact flesh.  The result could be consistent with DNA from the deceased’s skin cells or blood.

8. Michael Egart, a police officer, interviewed the appellant from 3.09 on the morning of 5 May 2012.  He did not notice anything to suggest the appellant was affected by alcohol or drugs at that time.  He was aware a specimen of breath had been obtained from the appellant at approximately 2.00 in the morning which returned a blood alcohol concentration of 0.038 per cent.  The interview commenced a little over an hour later.  Mr Egart also undertook other investigations, including obtaining details of a taxi trip undertaken by the appellant and Ms Davis from a liquor store at Browns Plains to their residence at about 6.55 on the evening of 4 May 2012.  He also ascertained that Ms Davis telephoned triple zero at 9.34 that evening.  The ambulance service was dispatched at 10.08 pm.  He also ascertained that a telephone located in the bathroom of the residence was still connected to triple zero at the time police arrived at the residence at 10.12 that evening.  He agreed Ms Davis told police on the night that the appellant had been drinking with a friend.  Ms Davis did not know how many beers the appellant had consumed because she said she was inside the house.

9. The interview conducted with the appellant from 3.09 in the morning of 5 May 2012 extended over several hours.  There was a lengthy break whilst a forensic examination of the applicant was undertaken.  During that interview the appellant indicated he had been born on 19 February 1988.  He completed Year 10 at his local high school.  He said he was engaged to Ms Davis but was single “now”.  He had consumed alcohol the previous evening.  His last alcohol was taken some five minutes before the incident with the deceased.  The appellant said that incident started off as a fight with some heated words and “got bad pretty quick”.[18]  The appellant said there had been an incident the night before when he was awoken by an argument between the deceased and his partner.  He had wrestled with the deceased but it went nowhere.

   [18]AB343/5.

10. The appellant said he went out later that day and when he returned in the afternoon the deceased was drinking with two people.  Those two people left but the deceased continued drinking and ended up getting intoxicated very quickly.  The appellant said his friend and a girlfriend arrived and he began drinking some beer.  The appellant and the deceased then had a verbal altercation.  Afterwards, the appellant continued to drink some beer.

11. The appellant said later in the evening he sat down next to the deceased who whispered in his ear “I’m still not over it”.  The appellant thought the deceased was talking about the night before but realised he was talking about the appellant’s relationship with the deceased’s mother.  The appellant said the deceased said “every time I look at you I want to break your jaw” and said “every time I look at you I want to stab you”.  The deceased kept persisting and the appellant decided to leave with Ms Davis.  They went to the bottle shop.  When they returned the deceased was asleep.  The appellant and Ms Davis sat outside and drank for a while before they went inside to watch the football.  Later the deceased awoke and went into the bedroom to change his clothes.

12. The appellant said when the deceased returned to the lounge area, the deceased whispered that he wanted to fight the appellant.  The deceased confronted him face to face.  He started to push the appellant’s head up against the wall.  The appellant head butted him back.  The deceased then came at the appellant and grabbed the appellant around the neck and started pushing him backwards.  They struggled together in the kitchen area.  Ms Davis intervened and told them not in the house.  The appellant said the deceased came at him again and the appellant went whack with his left hand.  The deceased crumbled but got back up.  The appellant struck him again with his left hand and then with his right hand.  The deceased stumbled back and then launched at the appellant.  They struggled for some minutes until they finally ended up on the ground.

13. The appellant said he threw an elbow and hopped up, as did the deceased.  The appellant hit the deceased again with his right hand.  The deceased launched back at the appellant.  The appellant again hit the deceased and then pushed him “real hard” into the ground.  The appellant hit him again and realised the deceased was out to it.  The deceased started gurgling and was having difficulty breathing so the appellant lifted his head and tilted it to the side.  When the deceased did not recover, the appellant went to the sink, grabbed a pot, filled it with warm water and poured water onto the deceased’s back.  When the deceased did not react he poured water on his face.  The deceased then commenced breathing again.

14. The appellant said he left the deceased for about two minutes but looked back and saw he was not breathing or moving.  The appellant tried to put the deceased in a chair.  He put his finger down the deceased’s mouth to see if his tongue was alright.  The deceased was still not breathing.  The appellant then took the deceased into the bathroom.  At this point, Ms Davis started to clean up the blood.  When the appellant took the deceased into the bathroom he was lifeless.  The appellant tried to listen to the deceased’s heart.  He asked Ms Davis to find a stethoscope so he could listen to see if he had a heartbeat.  Ms Davis could not find it.  The appellant panicked and telephoned the ambulance.  The appellant then commenced resuscitation.

15. The appellant said he met the deceased when he was in Grade 9 and the deceased was in Grade 8.  The deceased had not accepted the fact that the appellant had started a relationship with the deceased’s mother.  The appellant said by the time the incident took place he had finished the six pack of beer he had purchased at the liquor store earlier that evening.  The appellant could not remember how many punches he threw altogether in the incident but remembered the deceased was bleeding during the fight.  Blood was coming from his ears, nose and mouth.  It was not until the appellant stopped that he realised the deceased was lying in a pool of blood.  The appellant did not think the deceased punched him at any time during the fight.  The appellant did not leave himself in a position to be hit.  He said growing up he had worked out ways not to be hit.  He said the best way to avoid being hit was to hit the deceased.[19]

    [19]AB360/25.

16. The appellant said he was striking the deceased with closed fists and his elbow.  He also hit him with his right open palm.  The appellant agreed he had lifted the deceased off the floor and punched him with his right hand.  The punches were always straight onto each other.  He could have punched the deceased in the abdomen area and could have hit him on the top of the head.  He denied ever striking the deceased on the back of the head.  The appellant said when the confrontation continued he thought he would have to knock the deceased out as it was not going to stop.  He kept continuing as the deceased kept continuing on with it.  He said the deceased was swollen on the face and had a bit of blood on the side of his face.

17. At one point the appellant said the deceased had the appellant down and the appellant “unloaded it”, giving the deceased “couple punches, couple elbows, couple of palms and then got up”.[20]  His only intention was to get up because it was the same shit over and over again.  He thought he may have punched the deceased eight or ten times and was hitting him straight on.  Ms Davis was telling him to stop.  When he looked down the deceased looked “a bit weird”.[21]  The appellant left for a cigarette and when he returned the deceased began weird breathing and sounded bad.  That was when the appellant rolled the deceased over and put him on the chair before taking him to the bathroom.  The appellant ripped the deceased’s shirt off him.  He was panicking.  He poured water onto his back and flipped him over before pouring water on his face.  That was just before he put the deceased in the chair.

    [20]AB363/5.

    [21]AB364/5.

18. The appellant said he obtained the water from the sink and put it in a pot they had cooked the potatoes in which was on the bench or near the sink.  It was empty and had two side handles.  The appellant described the pot as being made of steel or iron.  The dinner had been prepared in it earlier that night.  They had emptied the potatoes out of it when they arrived home.  They emptied them into the front garden because when the deceased was drunk he did some disgusting things.  The appellant was concerned the deceased may have spat in the pot.  The appellant described the pot that the potatoes were being cooked in as blue and white.

19. The appellant said he rang the ambulance after the deceased did not respond from being placed in the shower.  He then commenced resuscitation.  He described the deceased as lifeless when he carried him into the bathroom.  The appellant recalled at one point punching the wall with his right hand.  This occurred when they were struggling in the hallway and he had pushed the deceased away with a punch.  The appellant said he and the deceased had had about 15 altercations in the past.  Sometimes the deceased got lucky and was not injured in the fight.  If he was unlucky, he went home with a busted face.  The deceased “acts like a fuckwit when he’s pissed”.[22]  The appellant said when he was punching the deceased his intention was to stop the fight.  It is “either he knocks me out or I knock him out”.[23]  The appellant said he wished it had never happened.

    [22]AB375/40.

    [23]AB379/20.

    Applicable principles

20. In considering whether the jury verdict is unreasonable the question for this Court is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that at the time the appellant killed the deceased he had the intention to kill the deceased or do him grievous bodily harm.

21. In determining that question this Court must make an independent assessment of the whole of the evidence, both as to its quality and its sufficiency.[24]  In undertaking that assessment, full regard should be had for the consideration that the jury is entrusted with the primary responsibility of determining guilt or innocence and that the jury had the benefit of having seen and heard the witnesses.[25]

    [24]Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey & Gaudron JJ; SKA v The Queen (2011) 243 CLR 400 at 406 [14].

    [25]M v The Queen (1994) 181 CLR 487 at 493.

22. The applicable approach was expressed thus in M v The Queen[26]:

    “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”  (Citations omitted)

    [26]M v The Queen (1994) 181 CLR 487 at 494.

    Submissions

23. The appellant submits the verdict of the jury was unreasonable and could not be supported by the evidence when regard is had to the following:

    (a)there was no motive as to why the appellant would want to kill the deceased;

    (b)there were no admissions by the appellant as to an intention to cause death or grievous bodily harm;

    (c)the appellant attempted to revive the deceased and called an ambulance, mitigating against a finding that he wished to cause the deceased’s death;

    (d)the appellant continued to assault the deceased in front of Ms Davis, an act inconsistent with an intention to kill or do grievous bodily harm;

    (e)Ms Davis was an unreliable witness who embellished her account at trial given the inconsistencies between that evidence and her committal evidence;

    (f)the medical evidence did not exclude there were five or fewer applications of force;

    (g)the medical evidence did not prove the appellant struck the deceased with the metal pot;

    (h)there was no other reliable evidence to establish the appellant assaulted the deceased with an intention to cause death or grievous bodily harm.

24. The appellant submits the aggravation of those matters, in the context of the evidence led at trial, demonstrated the appellant struck the deceased a number of times without the requisite intent.  The forensic evidence did not unequivocally demonstrate that the degree of force applied by the appellant showed an intention to kill or do grievous bodily harm.  There was nothing to suggest the jury had an advantage in seeing and hearing the evidence such as to prohibit an interference with its verdict on the grounds it is unreasonable.  A verdict of manslaughter should be substituted in the circumstances.

25. The respondent submits the evidence amply supported the jury’s finding that the appellant held the requisite intention necessary to establish his guilt of murder.  The evidence of Ms Davis and the appellant’s own statements to police indicated the appellant had delivered a large number of blows to the appellant.  The medical and scientific evidence was consistent with the delivery of a number of blows.  The evidence further indicated the physical altercation was one sided and the appellant did not allege in his interview that the deceased had in fact struck him at any time during the incident.  Further, the only recent injuries observed on the appellant were consistent with injuries occasioned in assaulting the deceased, except for one abrasion.

26. The respondent submits Ms Davis’ evidence was supportive of a conclusion that the appellant continued to strike the deceased while he was on the ground and non-responsive.  The appellant’s own account was that he delivered eight to ten blows to the deceased in the final phase of the altercation while the deceased was on the ground and “already busted”.  The scientific evidence supported projected blood stains consistent with the source of blood being close to the ground.  The appellant acknowledged in his interview that the deceased was bleeding from the nose, ears and mouth during the altercation before he delivered the final blows.  That account was consistent with the scientific evidence of blood splatter analysis.

27. The respondent submits the jury also had evidence from the forensic pathologist as to the degree of force necessary to inflict the deceased’s injuries.  That evidence was consistent with the appellant’s description of the manner of striking the deceased.  There was also evidence the deceased was struck by the appellant by the metal pot he had obtained from the kitchen.  The evidence of the forensic pathologist was to the effect that the deceased had head injuries consistent with repeated blows from that type of object.  There was also blood on the pot, hair and what appeared to be human tissue on the broken handle, all consistent with the DNA profile of the deceased.  The location of projected blood stains on the ceiling was also consistent with cast off from an object striking a bloody surface or the direct application to the source of blood of significant force.

28. Finally, the respondent submits there was a body of evidence indicating irritation and frustration, if not anger, on the part of the appellant towards the deceased in the lead up to the incident.  The evidence of the deceased’s sister and brother was that the appellant had said on the afternoon before the incident he was going to teach the deceased a lesson and was going to put the deceased in hospital.  The appellant in the interview with police identified his anger with the deceased, including that he had unloaded it.

1. The respondent submits the variations in Ms Davis’ evidence and her previous accounts were ultimately matters for the jury’s consideration.  The accuracy of Ms Davis’ account was supported in a number of material ways including the making of the triple zero call, the location of a telephone without a battery in it, forensic analysis of the scene including the location of the pot, towels, vegetables in the garden and some of the appellant’s own statements to police.  Whilst the appellant did not admit to police that he intended to kill or cause grievous bodily harm to the deceased, he made statements suggesting his intention was to knock out the deceased.  These statements allowed the jury to reject the appellant’s assertions he did not have the requisite intention.

2. Further, the appellant’s conduct after desisting in the attack was not irreconcilable with an intention to cause death or grievous bodily harm at the time of infliction of the injuries.  Those actions were consistent with regret after the event.  Against that background, it was open to the jury on the evidence to be satisfied beyond reasonable doubt that the appellant held the requisite intention.  The verdict of guilty of murder was not unreasonable.

   Discussion

3. The evidence placed before the jury amply supported the jury conclusion that the appellant caused the death of the deceased.  Whilst the appellant contends that evidence was insufficient to satisfy the jury beyond reasonable doubt that at the time he caused that death he intended to cause death or grievous bodily harm, a consideration of the evidence as a whole supports a conclusion that it was open to the jury to be satisfied the appellant had the requisite intention at that time.

4. The variations in Ms Davis’s accounts were not of a nature or magnitude to allow a proper conclusion that her evidence lacked probative value.  Ms Davis gave a consistent account of a sustained and brutal altercation between the appellant and the deceased in which the appellant inflicted multiple blows with his fists to the deceased whilst the deceased was lying on or near the floor of the residence.  The appellant’s own account to police supported that version of events.

5. Whilst the appellant denied that he had ever struck the deceased with the metal pot, there was ample evidence to support the accuracy of Ms Davis’ account that the appellant had struck the deceased on a number of occasions with the metal pot.  The pot was located in the lounge area with a broken handle, in the area Ms Davis said she had hidden the pot.  The material found on the pot and the broken handle, consistent with human hairs and flesh, had a DNA profile consistent with that of the deceased.  Further, the forensic pathologist’s examination revealed injuries to the back of the deceased’s head which were consistent with being struck by an object similar to the pot, on a number of occasions.  Whilst the forensic pathologist could not exclude that those injuries could have been caused by less than five blows or contact with the floor, he considered it most unlikely having regard to the appearance of the laceration to the back of the deceased’s head.  An analysis of blood splatters located in the area were also consistent with a distribution of projected blood from an object or by contact between an object and the deceased.

6. Although no motive was established by the prosecution, there was evidence the appellant was angry with the deceased before the altercation.  Ms Davis and Ms Fewquandie gave evidence of the appellant speaking of physically harming the deceased.  There was also evidence of the appellant’s anger during the altercation.  The appellant, on his own admission, “unloaded” on the deceased.  The number, nature and location of the deceased’s injuries were consistent with the sustained application of force by the appellant.  Those injuries included a fracture of the mandible which was inconsistent with contact with the floor.  The locations of other injuries were also consistent with a sustained incident involving the application of multiple blows to the deceased by the appellant with his fists and the metal pot.

7. The fact the appellant took steps to attempt to revive the deceased after the sustained altercation, and called an ambulance, is not inconsistent with the appellant having the requisite intention at the time he caused the death of the deceased.  Those actions are human reactions to the consequences of his actions.  They are not sufficient to negate the force of the other evidence, which was strongly suggestive of the existence of the requisite intent.

   Conclusion

8. None of the matters raised by the appellant, either individually or collectively, are sufficient to enable a conclusion that the evidence lacked credibility or contained discrepancies, inadequacies or a lack of probative force of a magnitude such as to give rise to the significant possibility an innocent person has been convicted of this offence.  The evidence, as a whole, was sufficient to allow the jury to be satisfied beyond reasonable doubt that the appellant had caused the deceased’s death, intending to kill or do grievous bodily harm to him.

   Orders

9. I would dismiss the appeal.

10. BURNS J:  For the reasons expressed by Boddice J, I agree that the appeal must be dismissed.